As recreational sport returns to local parks and commons, a recent High Court ruling has served as a useful reminder to occupiers of their duty of care owed to visitors. The case considers, amongst other things, the requirement of reasonableness under the Occupiers Liability Act 1957 (the “OLA 1957”) as well as the concept of remoteness.  It is also notable for revisiting points to be distilled from the seminal House of Lords decision in Bolton v Stone.^[1]

Facts of the Case

In August 2014, the claimant in Lewis v Wandsworth London Borough Council^[2] was walking through Battersea Park, along a path that bounded a small cricket pitch. Upon hearing a shout, she turned her head and was immediately struck on the eye by a falling cricket ball, causing her serious injury.

The claimant brought a case against the local authority. She claimed that they should have put up signage that warned that a cricket match was being played with hard balls and/or prohibited the path from being used during matches. Had there been such signs, she claimed that she would have paid greater attention to the match and would have been able to dodge any stray cricket balls.

First Instance Decision

In an order made on 21 November 2019, Mr Recorder Riza QC considered whether the defendant had discharged its “common duty of care” under s.2 OLA 1957. This duty obliges the council to take “such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which [s]he is invited or permitted by the occupier to be there“.

In the Recorder’s judgment, the facts indicated that the risk of such an incident occurring was “quite extensive“. This was due to the proximity of the path to the boundary of the cricket pitch and the fact that a primary purpose of a batter during a match is to aim for said boundary. There was also an increased risk that any injury caused would be a serious one, because a hard cricket ball was being used.

Therefore, the Recorder held that the council should have ensured that such dangers were properly signposted. This would include a warning that: (i) a match was in progress; (ii) the path was near the boundary of the pitch; and (iii) hard balls were being used. By failing to signpost these dangers, the defendant had allowed pedestrians to walk along a path that was not reasonably safe and had failed in its duty of care.

The Recorder distinguished the facts from those in Bolton v Stone. In that case, the claimant was similarly struck by a cricket ball that had been hit from a nearby pitch. However, throughout the cricket club’s history, a ball had only been hit over the 17ft fence onto the highway around six times and had never previously hit someone. Therefore, the claim was dismissed as the risk to passers-by was not reasonably foreseeable. The Recorder held that those facts were “wholly different” to these circumstances, where the boundary of the cricket pitch was about eight meters away from an unprotected park pathway. He therefore rejected that the case could assist the defense.

The Recorder consequently granted the claimant damages of nearly £17,000.

Appeal Decision

On appeal to the High Court in November 2020, the Judge overturned the Recorder’s decision and dismissed the claim.

Firstly, the Judge held that the Recorder had failed to consider a material factor in evaluating the risk of injury. According to the Judge, the Recorder had not taken into account the statistics on the vast number of matches played at Battersea Park without reported injury. Since at least 1989, the chief parks officer was unaware of any injuries of this type being caused in the borough. This was despite the fact that the cricket pitches were frequently booked for matches (in excess of 200 bookings per year) and that the park would be very busy during the summer. Contrary to the Recorder’s judgment, the evidence indicated that the risk of injury to passers-by was “extremely small“.

Secondly, the Judge considered the three elements of the defendant’s alleged failure to warn.

(i) The failure to warn that a cricket match was in progress.

It was rejected that the defendant was under such a duty. There was a clear view of the pitch from the path and it was therefore evident that a match was taking place. Indeed, the claimant had acknowledged in her statement that she was a regular visitor to the park, and had seen the pitch and the players. As an aside, the Judge questioned whether the claimant would have registered a warning sign in any event, if she had not noticed the cricket match taking place at all.

(ii) The failure to warn that a hardball was being used.

This was similarly rejected, with the Judge unconvinced that a reasonable passer-by could envisage that an adult cricket match would be played with a softball. The players were also wearing whites, which would have indicated that a serious match was taking place.

(iii) The failure to warn that the boundary of the cricket pitch went alongside the path.

It was held that the location of the boundary was, in fact, largely irrelevant given an aim of the batter in a cricket match is to hit the ball out of the ground. In any case, the claimant had seen the white line by the path, which she admitted was “on reflection obviously the boundary“.

In this instance, the Judge held that any warning sign would have been “superfluous“, given how evident the risk was of cricket balls being hit towards the path. Permitting pedestrians to use the path during a cricket match was reasonably safe and the possibility of injury (albeit a serious injury if it occurred) was remote.

Takeaways

The case is a useful reminder of some of the key principles to bear in mind when assessing the scope of an occupier’s duty of care to an injured visitor:

• the duty of care imposed upon occupiers is one qualified by reasonableness (and not a strict duty);

• the foreseeability of a particular incident occurring must be taken into account (and in assessing such remoteness, past statistics are a useful tool); and

• a failure to give warnings is not determinative of a breach of duty – in this regard, the ‘but for’ test shall apply, with consideration given, amongst other things, to how obvious the particular danger is.

^[1] [1951] A.C. 850.

^[2] [2020] EWHC 3205 (QB).